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Child Pornography: Knowing Possession – Viewing Digital Image on Computer

State v. Benjamin W. Mercer, 2010 WI App 47; prior history: Certification, 7/1/09, rejected 9/10/09; for Mercer: Steven P. Sager

A person can knowingly possess images of child pornography while viewing them on a computer, even though they aren’t stored on the hard drive.

¶29      Our impression of these cases is that courts are more concerned with how the defendants got to the website showing child pornography, than what the defendants actually did with the images. In all of the cases, the defendant reached out for the images. This fits with the definition of constructive possession: the user could save, print or take some other action to control the images, and the user affirmatively reached out for and obtained the images knowing that the images would be child pornography as shown by the pattern of web browsing. This may occur whether there is cache evidence or not. And that is the main point to be made here.

¶29      At oral argument, the State provided the following explanation of how viewing images and web browsing can constitute reaching out for images by describing the difference between “push technology” and “pull technology.” In push technology, the receiver does not request the materials. The cyber equivalent is spam. The real world equivalent would be like walking on a route, which you cannot change, that has a newsstand displaying risqué magazines for passersby. As the State explained, people confronted with push technology “are not asking to see it, but it’s there to view.” In contrast, pull technology is where the receiver is asking for the materials. The cyber equivalent is clicking on a button and asking something to come to you. Similarly, the real world equivalent would be like writing to a company and asking it to send you its marketing literature.

¶30      This distinction makes sense to us, because in pull technology the user knows what he or she is looking for and is making a request to obtain that material. So we conclude that an individual knowingly possesses child pornography when he or she affirmatively pulls up images of child pornography on the Internet and views those images knowing that they contain child pornography.  Whether the proof is hard drive evidence or something else, such as the monitoring software here, should not matter because both capture a “videotape” of the same behavior. And images in either place can be controlled by taking actions like printing or copying the images.

Short version: it’s “whether the defendant has reached out for and controlled the images,” ¶32. Here, the evidence was sufficient, given that monitoring software revealed that Mercer entered search strings associated with child pornography; that the images couldn’t have been “pop-ups”; that no viruses were found; and that the images portrayed young girls in (partially) nude, sexually explicit poses, ¶¶36-41.

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